In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐3037
KEVIN STERK and JIAH CHUNG,
Plaintiffs‐Appellants,
v.
REDBOX AUTOMATED RETAIL, LLC,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11‐cv‐01729 — Matthew F. Kennelly, Judge.
____________________
ARGUED SEPTEMBER 26, 2014 — DECIDED OCTOBER 23, 2014
____________________
Before FLAUM, MANION, and KANNE, Circuit Judges.
FLAUM, Circuit Judge. Redbox Automated Retail, LLC out‐
sources its customer service operations to Stream Global
Services, which fields Redbox customer inquiries through a
customer service call center. To enable Stream to perform
this function, Redbox provides Stream with access to its cus‐
tomer database, the disclosure of which Kevin Sterk and Jiah
Chung allege violates the Video Privacy Protection Act, 18
U.S.C. § 2710. The district court granted summary judgment
2 No. 13‐3037
in Redbox’s favor, concluding that Redbox’s actions fall with‐
in the statutory exception for disclosures in the ordinary
course of business—more precisely, disclosures incident to
“request processing.” We agree, and therefore affirm the dis‐
trict court’s decision.
I. Background
Redbox operates automated self‐service kiosks—typically
located at grocery stores, convenience stores, or drug
stores—at which customers rent DVDs and Blu‐ray discs
with a debit or credit card for a daily rental fee. Although
Redbox owns and operates the machines, the company out‐
sources certain “back office” functions to various service
providers, including Stream. Stream provides customer ser‐
vice to Redbox users when, for example, a customer encoun‐
ters technical problems at a kiosk and requires help from a
live person. In such an event, the Redbox customer can call
the phone number listed on the machine to speak to a cus‐
tomer service representative to troubleshoot the issue. If res‐
olution of the customer’s issue requires accessing that cus‐
tomer’s video rental history—for instance, if a Redbox kiosk
charges the customer’s credit card, but fails to dispense the
selected movie—that call center representative (a Stream
employee) will do so.
So that Stream can perform Redbox’s customer service
functions, Redbox has granted Stream access to the database
in which Redbox stores relevant customer information. To
enable customer service representatives to perform their jobs
capably, Stream trains its employees on how to use the data‐
base to access the information necessary to respond to cus‐
tomer inquiries. Plaintiffs object both to Stream’s ability to
access customer rental histories when prompted by a cus‐
No. 13‐3037 3
tomer call and Stream’s use of customer records during the
course of employee training exercises. In plaintiffs’ view,
Redbox’s disclosure of customer information to Stream for
these purposes violates the Video Privacy Protection Act
(“VPPA”).
Enacted in 1988 in response to the Washington City Paper’s
publication of then‐Supreme Court nominee Robert Bork’s
video rental history (a DC‐area video store provided it to a
reporter), S. Rep. No. 100‐599, at 5 (1988), reprinted in 1988
U.S.C.C.A.N. 4342, the VPPA prohibits “video tape service
provider[s]” like Redbox from “disclos[ing], to any person,
personally identifiable information concerning any consum‐
er of such provider.” 18 U.S.C. § 2710(b)(1). Personally iden‐
tifiable information (“PII”) “includes information which
identifies a person as having requested or obtained specific
video materials or services from a video tape service provid‐
er.” Id. § 2710(a)(3). But the VPPA provides several excep‐
tions to the disclosure prohibition, allowing disclosure of a
consumer’s video rental history when the consumer has
provided written consent, when the party seeking disclosure
has obtained a warrant or court order, or (relevant to this
case) when the disclosure is incident to the video tape ser‐
vice provider’s ordinary course of business. Id. § 2710(b)(2).
The statute instructs that “‘ordinary course of business’
means only debt collection activities, order fulfillment, re‐
quest processing, and the transfer of ownership.” Id.
§ 2710(a)(2).
Plaintiffs Kevin Sterk and Jiah Chung are Redbox users
who contend that Redbox’s disclosure of their PII to Stream
is not incident to Redbox’s ordinary course of business. Ini‐
tially, Sterk filed this lawsuit without Chung, alleging in his
4 No. 13‐3037
original complaint only that Redbox violated the VPPA’s
“destruction of old records” provision, which requires video
tape service providers to destroy PII “as soon as practicable,
but no later than one year from the date the information is
no longer necessary for the purpose for which it was collect‐
ed and there are no pending requests or orders for access to
such information.” 18 U.S.C. § 2710(e). After Sterk’s case was
consolidated with a similar suit, Redbox moved to dismiss
Sterk’s complaint, arguing that the VPPA does not provide a
private right of action for mere “information retention.”
Sterk then filed an amended complaint, which Chung joined,
adding the unlawful disclosure claim at issue here. Redbox
again moved to dismiss. The district court denied the motion
but certified for interlocutory appeal the issue of whether the
VPPA’s private right of action extended to improper reten‐
tion claims. We took up the issue and reversed the district
court, holding that the VPPA does not provide a damages
remedy for a retention claim, and so plaintiffs could only
seek injunctive relief from Redbox for its alleged failure to
timely destroy their information. See Sterk v. Redbox Automat‐
ed Retail, LLC, 672 F.3d 535, 538–39 (7th Cir. 2012).
While the interlocutory appeal on the retention issue was
pending, discovery regarding the disclosure claims proceed‐
ed. Fact discovery commenced on December 21, 2011, and
originally was set to close on April 6, 2012. Over Redbox’s
opposition, plaintiffs moved to extend discovery by a month,
and the district court obliged. During this discovery period,
we issued our opinion on the retention issue, and the district
court granted plaintiffs leave to file another amended com‐
plaint. After denying in part and granting in part Redbox’s
renewed motion to dismiss the retention claims, the district
court reopened discovery as to both the disclosure and re‐
No. 13‐3037 5
tention claims for an additional period of time. During dis‐
covery, Redbox produced over a thousand pages of docu‐
ments in response to forty‐eight document requests; re‐
sponded to forty‐two interrogatories; and produced wit‐
nesses for three depositions, including two Rule 30(b)(6)
witnesses. In the end, Redbox produced information con‐
cerning every vendor to which Redbox discloses customer
information—including the precise information shared to
each—and plaintiffs successfully obtained third‐party dis‐
covery from Stream. Against that backdrop, Redbox moved
for summary judgment.
Plaintiffs objected to Redbox’s summary judgment mo‐
tion as premature, arguing (pursuant to Federal Rule of Civil
Procedure 56(d)) that they needed more discovery in order
to adequately respond to Redbox’s arguments. Despite their
contention, plaintiffs pointed to just two issues concerning
which they desired more discovery: (1) information regard‐
ing the “technical” method by which “Stream queries
Redbox’s database,” and (2) information relating to whether
Stream accesses all, or just a portion, of Redbox’s customer
records. The district court denied plaintiffs’ request for addi‐
tional discovery and granted summary judgment as to all
counts in Redbox’s favor. As to plaintiffs’ improper disclo‐
sure claim (the only claim at issue in this appeal), the district
court concluded that Redbox’s disclosure of its customers’
PII to Stream constitutes “request processing” and thus falls
within the VPPA’s “ordinary course of business” exception.
Plaintiffs appeal the summary judgment decision, as well as
the district court’s refusal to permit additional discovery be‐
fore ruling. Plaintiffs also complain that the district court
overlooked a footnote in their opposition brief concerning
Iron Mountain, a vendor with which Redbox stores backup
6 No. 13‐3037
tapes of its data. Though victorious below, Redbox takes is‐
sue with the district court’s standing analysis.
II. Discussion
We review the issue of standing de novo. Sierra Club v.
Franklin Cnty. Power of Ill., LLC, 546 F.3d 918, 925 (7th Cir.
2008). We also review the district court’s summary judgment
ruling de novo, construing all facts and drawing all reasona‐
ble inferences in the light most favorable to plaintiffs (the
non‐moving party). Mullin v. Temco Mach., Inc., 732 F.3d 772,
776 (7th Cir. 2013). The district court’s denial of plaintiffs’
Rule 56(d) motion for additional discovery is reviewed for
an abuse of discretion. Davis v. G.N. Mortg. Corp., 396 F.3d
869, 885 (7th Cir. 2005).
A. Standing
Redbox argues that plaintiffs lack standing because they
did not suffer an injury in fact when Redbox disclosed their
PII to Stream. “[T]he irreducible constitutional minimum of
standing contains three elements.” Lujan v. Defenders of Wild‐
life, 504 U.S. 555, 560 (1992). First, a plaintiff must have suf‐
fered an injury in fact—that is, “an invasion of a legally pro‐
tected interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical.” Id.
(internal citations and quotation marks omitted). Next, that
injury must be fairly traceable to the challenged action of the
defendant—i.e., there must be a causal connection between
the injury and the conduct. Id. Finally, it must be likely that
the injury will be redressed by a favorable decision. Id. at
561. Here, there is no doubt that plaintiffs have alleged an
“invasion of a legally protected interest,” which this suit
would remedy if successful. See Hayes v. City of Urbana, Ill.,
No. 13‐3037 7
104 F.3d 102, 103 (7th Cir. 1997) (“What is necessary for
standing is a concrete injury, redressable by success in the
litigation.”). Plaintiffs have demonstrated that Redbox, in
fact, disclosed their PII to Stream and argue that such disclo‐
sure violates the VPPA.
Redbox characterizes plaintiffs’ claim as an allegation
that Redbox committed a “mere technical violation” of the
statute, which Redbox argues is insufficient to establish
standing. But “technical” violations of the statute (i.e., im‐
permissible disclosures of one’s sensitive, personal infor‐
mation) are precisely what Congress sought to illegalize by
enacting the VPPA. As we have said, Congress “may not
lower the threshold for standing below the minimum re‐
quirements imposed by the Constitution,” but Congress
does have the power to “enact statutes creating legal rights,
the invasion of which creates standing, even though no inju‐
ry would exist without the statute.” Kyles v. J.K. Guardian Sec.
Servs., Inc., 222 F.3d 289, 294 (7th Cir. 2000) (internal quota‐
tion marks omitted). Accordingly, Redbox appears to con‐
fuse the separate issue of whether plaintiffs have suffered
financial harm as a result of the disclosure with Article III’s
injury‐in‐fact requirement for purposes of constitutional
standing to bring suit in the first place.1 By alleging that
Redbox disclosed their personal information in violation of
the VPPA, Sterk and Chung have met their burden of
demonstrating that they suffered an injury in fact that suc‐
cess in this suit would redress.
1 Though to be clear, the VPPA entitles successful plaintiffs to “actual
damages but not less than liquidated damages in an amount of $2,500”
for an unlawful disclosure of their PII. 18 U.S.C. § 2710(c)(2)(A).
8 No. 13‐3037
B. Redbox’s Disclosures to Stream
In opposing Redbox’s motion for summary judgment,
plaintiffs focused on a 1988 Senate Judiciary Report that
purportedly speaks to the type of disclosure that Congress
intended to permit under the VPPA. The Senate Report
reads:
This subsection takes into account that video tape
service providers may use third parties in their busi‐
ness operations. For example, debt collection is often
conducted by third parties, with disclosure of credit
histories made to third party credit bureaus. Debt col‐
lection is subject to other Federal laws: disclosures for
that purpose continue to be governed by those laws.
This subsection also allows disclosure to permit video
tape service providers to use mailing houses, ware‐
houses, computer services, and similar companies for
marketing to their customers. These practices are
called “order fulfillment” and “request processing.”
S. Rep. No. 100‐599, at 14 (1988), reprinted in 1988
U.S.C.C.A.N 4342. Seizing on this last paragraph, plaintiffs
argued to the district court that the Senate Judiciary Com‐
mittee intended to group disclosures incident to “order ful‐
fillment” and “request processing” (two of the four disclo‐
sure exceptions) together and define them as disclosures on‐
ly to “mailing houses, warehouses, computer services, and
similar companies for marketing to their customers.” Based
on that self‐serving interpretation of Congress’s intent, plain‐
tiffs contended that the VPPA permits disclosure only to
third‐parties engaged in (1) debt collection, (2) transfer of
ownership, and (3) marketing—effectively reducing the
No. 13‐3037 9
number of statutory disclosure exceptions from four to three.
The district court was not persuaded.
Highlighting the Supreme Court’s stance that “[e]xtrinsic
materials have a role in statutory interpretation only to the
extent that they shed a reliable light on the enacting Legisla‐
ture’s understanding of otherwise ambiguous terms,” and
the Court’s recognition that committee reports can “give un‐
representative committee members … both the power and
the incentive to attempt strategic manipulations of legislative
history to secure results they were unable to achieve through
the statutory text,” the district court saw no persuasive rea‐
son to effectively rewrite a federal statute based on an am‐
biguous committee report. Sterk v. Redbox Automated Retail,
LLC, 2013 WL 4451223, at *4–5 (N.D. Ill. Aug. 16, 2013) (quot‐
ing Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
568 (2005)). In the district court’s view: “[i]t is undisputed
that the only functions Stream performs for Redbox are cus‐
tomer support services and that Stream performs these ser‐
vices only in response to customers’ requests for infor‐
mation. It is difficult to imagine a more obvious illustration
of ‘request processing’ given the ordinary meaning of that
term.” Id. at *4.
On appeal, plaintiffs abandon their contention that “or‐
der fulfillment” and “request processing” are synonymous
with marketing activities. Instead, they argue that Congress
intended to limit “request processing” to the processing of
requests for specific video materials. The VPPA defines four
terms, in the following order: (1) “consumer,” (2) “ordinary
course of business,” (3) personally identifiable information,”
and (4) “video tape service provider.” 18 U.S.C. § 2710(a). As
discussed, “ordinary course of business” means “debt collec‐
10 No. 13‐3037
tion activities, order fulfillment, request processing, and the
transfer of ownership.” Id. § 2710(a)(2). “Personally identifi‐
able information,” the next defined term, “includes infor‐
mation which identifies a person as having requested or ob‐
tained specific video materials or services from a video tape
service provider.” Id. § 2710(a)(3) (emphasis added). Plain‐
tiffs urge us to read the former definition as modifying the
latter and conclude that “request processing” refers only to
requests for “specific video materials.” As plaintiffs see it, a
customer makes a request for specific video materials when
he selects a particular movie to rent while standing at a
Redbox kiosk. By plaintiffs’ logic, therefore, Redbox kiosks
process all customer “requests” (as they narrowly construct
that term), and so any inquiries made by a consumer who
calls Redbox’s customer service line (operated by Stream)
necessarily occur outside of the ordinary course of Redbox’s
business.
There are several problems with plaintiffs’ reasoning.
First, we are unconvinced that just because PII includes in‐
formation that identifies a person as having “requested” ma‐
terials, the phrase “request processing”—which appears ear‐
lier in the statute—is necessarily limited to that type of re‐
quest. But even assuming that the phrase is constrained in
that way, plaintiffs mischaracterize the VPPA’s definition of
“personally identifiable information,” overlooking a critical
piece of the statutory language. Again, PII is defined as in‐
clusive of “information which identifies a person as having
requested or obtained specific video materials or services
from a video tape service provider.” 18 U.S.C. § 2710(a)(3)
(emphasis added). Only by ignoring the words “or services”
are plaintiffs able to craft a reading of the statute that ex‐
cludes customer service requests from “request processing”
No. 13‐3037 11
with at least some degree of plausibility. Restoration of “or
services” to the definition of PII, however, forecloses plain‐
tiffs’ strained reading altogether, since it is difficult to fathom
“a request for service” in the video rental context that does
not implicate the customer service that Stream provides for
Redbox.
Moreover, common sense counsels against plaintiffs’
statutory construction. Plaintiffs argue that “request pro‐
cessing” refers only to a Redbox kiosk’s computerized re‐
sponse when a consumer selects a movie using the kiosk’s
touchscreen, while “order fulfillment” describes the kiosk’s
dispensing of the selected movie after processing the cus‐
tomer’s request. But Congress enacted the VPPA in 1988, be‐
fore the advent of automated kiosks (or internet‐based rental
companies or streaming services). Thus, when the law was
passed, Congress assuredly had a brick‐and‐mortar video
rental store in mind. The “ordinary course” of that rental
store’s business would have included typical interactions be‐
tween a customer and the store clerk, who in many cases
would have accessed an individual customer’s rental history,
address, and other personal information during the check‐
out process. And if that customer experienced technical
problems with his rented VHS upon his return home from
the store, he would have called the store to complain or seek
a refund. He also would have called to complain if the store
overcharged his credit card. All of these interactions, occur‐
ring within the store’s ordinary course of business, constitute
that customer’s “request processing” and “order fulfill‐
ment,” if ordinary meaning is assigned to those terms. Ac‐
cordingly, plaintiffs’ attempt to carve out customer service
from a video rental company’s “ordinary course of business”
is unpersuasive. Congress, of course, did not draft the VPPA
12 No. 13‐3037
only with automated video rental kiosks in mind, and so it
defies logic to construe the statute’s terms as if it had. Be‐
sides, though a typical visit to a Redbox kiosk may not ne‐
cessitate an interaction between a customer and a live service
representative, some do—which is precisely why Redbox
provides its customers with the phone number for its call
center. And when the VPPA was enacted, we can safely as‐
sume that Congress contemplated customer service as part
and parcel of the ordinary rental experience. That Redbox
has replaced most live customer service interactions with a
computer interface does not change this.
Plaintiffs argue that even if responding to customer ser‐
vice requests is incident to Redbox’s ordinary course of busi‐
ness, Redbox violates the VPPA by preemptively disclosing
its entire customer database to Stream, rather than waiting
until Stream receives a call from a Redbox user and disclos‐
ing to Stream just the PII for that customer. In other words,
plaintiffs draw a distinction between disclosure of customer
PII that is proactive (in anticipation of customer requests)
and disclosure that is reactive (in response to an individual
customer’s call). We find that distinction meaningless, be‐
cause the permissibility of disclosure under the VPPA turns
on the underlying purpose for which Redbox provides the
information to a third party. And whether proactive or reac‐
tive, Redbox’s purpose for disclosing the information to
Stream is the same.
Our decision in Gracyk v. West Publ’g Co., 660 F.3d 275
(7th Cir. 2011), underscores our conclusion. Gracyk involved
a similar challenge under the Driver’s Privacy Protection Act
(“DPPA”). There, the plaintiffs alleged that defendant West
Publishing acquired their personal information from motor
No. 13‐3037 13
vehicle records for resale in violation of the DPPA. Id. at 276–
77. The DPPA prohibits state DMVs from disclosing personal
information about individuals that the DMV obtained in
connection with a motor vehicle record, and it prohibits pri‐
vate individuals from knowingly obtaining or disclosing
such information. Id. at 277. But like the VPPA, the DPPA in‐
cludes several disclosure exceptions. Id. The Gracyk plaintiffs
alleged that West Publishing obtained personal information
from state DMVs, stored it in a database, and then sold the
information to others. Id. at 279. The plaintiffs, however, did
not challenge the lawfulness of West Publishing’s disclo‐
sures; instead, the plaintiffs argued that the act of storing the
information in a database (prior to a lawful disclosure) was
illegal under the DPPA. Id. We disagreed, noting that
“[t]here is no meaningful difference in terms of West Pub‐
lishing’s purpose between the practice the plaintiffs ap‐
prove—obtaining the records each time West Publishing re‐
ceives a valid request—and the practice they object to—
compiling the records first and then disclosing them in re‐
sponse to a valid request. In both cases, West Publishing’s
‘purpose’ for obtaining the records” is the same. Id. at 279–
80.
That reasoning applies with equal force here. If it is per‐
missible to disclose PII to Stream in order to respond to a
customer’s call, there is nothing objectionable about
Redbox’s wholesale disclosure of information pertaining to
all customers, for use in the event of such a call. Likewise,
plaintiffs take issue with Stream’s use of customer PII during
training exercises in advance of such calls, but—again—the
purpose underlying Redbox’s disclosure of the PII is proper.
Disclosure of customer information for training purposes
may not be incident to a specific customer service request,
14 No. 13‐3037
but it is, of course, incident to the request processing func‐
tion that Stream serves.
C. Redbox’s Disclosures to Iron Mountain
Plaintiffs also complain on appeal that the district court’s
summary judgment ruling ignored Redbox’s disclosure of
customer PII to Iron Mountain, the vendor with which
Redbox apparently stores backup tapes containing company
records. In their brief in opposition to Redbox’s motion for
summary judgment, plaintiffs included a single reference to
Iron Mountain, complaining in a footnote that Redbox’s
summary judgment motion “inexplicably ignore[d]” the fact
that Redbox stores backup tapes containing company data
with the storage vendor (a fact revealed by a Rule 30(b)(6)
deponent during the course of discovery). Pl. Opp. to MSJ p.
4 n.1 [194]. In conclusory fashion, plaintiffs represented in
their opposition brief that Redbox does not store these back‐
up tapes in the ordinary course of business, but, nonetheless,
announced that their brief would focus solely on Redbox’s
disclosures to Stream. Plaintiffs, therefore, did not sufficient‐
ly raise this issue at summary judgment and, thus, failed to
preserve it for appeal. See Puffer v. Allstate Ins. Co., 675 F.3d
709, 718 (7th Cir. 2012) (“[A]rguments that have been raised
may still be waived on appeal if they are underdeveloped,
conclusory, or unsupported by law.”); APS Sports Collectibles,
Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002) (“It is
not this courtʹs responsibility to research and construct the
partiesʹ arguments, and conclusory analysis will be con‐
strued as waiver.”) (internal citation and quotation marks
omitted); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) (“A skeletal ‘argument,’ really nothing more than an
assertion, does not preserve a claim.”).
No. 13‐3037 15
Moreover, plaintiffs seem to misunderstand the burden
of proof at summary judgment. We have been clear that
“Federal Rule of Civil Procedure 56 imposes an initial bur‐
den of production on the party moving for summary judg‐
ment to inform the district court why a trial is not neces‐
sary.” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). That
burden “may be discharged by showing … that there is an
absence of evidence to support the nonmoving partyʹs case.”
Id. (internal quotation marks omitted). Upon such a show‐
ing, the non‐movant (here, plaintiffs) then must “make a
showing sufficient to establish the existence of an element
essential to that partyʹs case.” Id. Put another way, the non‐
movant must “go beyond the pleadings (e.g., produce affi‐
davits, depositions, answers to interrogatories, or admis‐
sions on file) to demonstrate that there is evidence ‘upon
which a jury could properly proceed to find a verdict’ in
[their] favor.” Id. at 1169 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986)). Plaintiffs not only failed to
make this showing at summary judgment, they expressly
renounced their opportunity to do so.
In their reply brief on appeal, plaintiffs argue that
“Redbox had the burden of establishing that the undisputed
facts showed that it did not disclose Plaintiffs’ personally
identifiable [sic] to anyone in violation of the VPPA.” Reply
Br. 19. Yet summary judgment is proper against “a party
who fails to make a showing sufficient to establish the exist‐
ence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial.” Celotex, 477
U.S. at 322. Thus, it was plaintiffs’ burden at summary
judgment to point to evidence that—taken as true and draw‐
16 No. 13‐3037
ing all reasonable inferences in their favor—established a vi‐
olation of the VPPA, not Redbox’s burden to disprove one.
Based on evidence in the record—which reveals simply
that Redbox stores backup data with Iron Mountain—a fact‐
finder would have no idea what information Redbox dis‐
closed to Iron Mountain, let alone why or when Redbox dis‐
closed it. Therefore, even if plaintiffs had properly raised the
issue to the district court at summary judgment, no reasona‐
ble factfinder could conclude (on such minimal evidence)
that Redbox disclosed customer PII to Iron Mountain in vio‐
lation of the VPPA.
D. Plaintiffs’ Motion for Additional Discovery
For similar reasons, the district court did not abuse its
discretion by denying plaintiffs’ motion for more discovery
pursuant to Federal Rule of Civil Procedure 56(d). Rule 56
permits a district court to delay consideration of a summary
judgment motion and order additional discovery before rul‐
ing if the non‐movant demonstrates that “it cannot present
facts essential to justify its opposition.” Fed. R. Civ. P. 56(d).
The Rule places the burden on the non‐movant that believes
additional discovery is required to “state the reasons why
the party cannot adequately respond to the summary judg‐
ment motion without further discovery.” Deere & Co. v. Ohio
Gear, 462 F.3d 701, 706 (7th Cir. 2006).
Plaintiffs identified two discrete areas of discovery that
they allegedly needed to further explore in order to respond
to Redbox’s summary judgment motion as it pertained to
Stream: (1) information regarding the “technical” method by
which Stream “queries Redbox’s database,” and (2) infor‐
mation that would shed more light on whether Stream had
No. 13‐3037 17
accessed all, or just some, of Redbox’s customer records. Nei‐
ther of these topics were material to the district court’s sum‐
mary judgment ruling. How Stream accesses Redbox’s infor‐
mation is irrelevant to whether disclosures to Stream fall
within the VPPA’s “ordinary course of business” exception,
and the district court made clear in its opinion that it would
reach the same conclusion (one which we endorse on appeal)
regardless of whether Stream had access to all customer rec‐
ords or just some of them. Plaintiffs therefore fell far short of
meeting their burden to identify material facts needed to
oppose summary judgment. Accordingly, the district court
did not abuse its discretion in denying plaintiffs additional
discovery before ruling on Redbox’s motion.2
2 Plaintiffs contend that the district court’s denial of their Rule 56(d) mo‐
tion sets a “dangerous precedent,” arguing that Redbox unfairly moved
for summary judgment at the close of class discovery, before merits dis‐
covery had begun. But Redbox explains that the “merits” portion of dis‐
covery was limited to information concerning unnamed putative mem‐
bers. “Class” discovery was designed to determine whether Redbox dis‐
closed prohibited information about named plaintiffs Sterk and Chung,
and, if so, whether the class requirements of Rule 23 were met. As
Redbox points out, over the lengthy discovery period prior to the filing
of its summary judgment motion, it provided plaintiffs with all relevant
information concerning the named plaintiffs and in‐depth descriptions
(pursuant to interrogatories and Rule 30(b)(6) depositions) of the various
vendors with which Redbox shares customer data. The only discovery it
refused plaintiffs during “class” discovery concerned the identities and
rental histories of yet‐to‐be‐named class members. Summary judgment
turned on the legal significance of Stream’s role as Redbox’s customer
service vendor. All material information pertaining to that question had
been sought and received by plaintiffs prior to summary judgment.
18 No. 13‐3037
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court.